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Prior to Sunday’s vote on health care reform, Nancy Pelosi said that we were “at the door step of history.” Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the “garden gate of history” but then Scott Brown was elected and “we backed down the front drive of history reversing over the neighbor’s dog of history.”

I am fairly certain that ObamaCare won’t work as advertised, but is it susceptible to constitutional challenge? To continue the Speaker’s hackneyed metaphor, are we to have anything other than a quick look around the foyer of history?

In Sunday’s Washington Post, Randy Barnett outlined some of the issues surrounding the constitutionality of ObamaCare. I am particularly interested in the status of the individual mandate. It is a standard bit of high school civics that Congress possesses only enumerated powers as opposed to the plenary authority of most state legislatures. The reality is a bit more complicated as courts, over the past seventy-five years have found these enumerated powers to be remarkably protean.

But, as Professor Barnett points out, the individual mandate may test the limits of Congressional power. Take the power to regulate interstate commerce. The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiar with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.

Still, the individual mandate may be different. Professor Barnett writes that “[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.” It’s one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It’s quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.

Some scholars and lawyers prefer to emphasize Congress’ authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate “easy.” For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. “The government can make you pay taxes,” he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.

Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, famously, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress’ ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person’s income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?

Without getting into the doctrinal ins and outs, this should not – and might not be -as easy as my old law review colleague believes it to be. There may yet be room to argue that Congress’ enumerated powers impose some limit on its power to tax, particularly when the tax is imposed in an effort to coerce certain behavior or to penalize a failure to act. Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.

The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.

It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously – and now ironically – thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what – save some other constitutional restriction – it cannot require you to do – or prohibit you from doing.

I appreciate that many people – including most of my colleagues in the legal academy – see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won’t.

The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to “get it right.”

I am not very comfortable. I am not very confident.

And I don’t think I am alone. As the popular response to ObamaCare demonstrates, there is a strong tradition – both in public sentiment and (I think still in constitutional theory)- of structural limitations on federal authority.
Our nation still seems to cling to our longstanding notions regarding the limitation of federal power. Given the Founders rather clear intent on the matter, would it really be surprising to see this theory of the Constitution surface in new ways? Is it is possible that the ongoing transmogrification of Article II may lead to a doctrinal response? If courts can no longer hold Congress to a set of enumerated powers, will they seek to restrain federal authority in other ways? Might we see more rigorous judicial scrutiny of what serves the “general welfare” or what is “necessary and proper.”

Sounds like Lochner? There is, after all, nothing new under the sun. It is not what I would want, but could it be what we get?

Cross posted at Point of Law, PrawfBlawg and Shark and Shepherd.

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10 Responses to “The End of the World As We Knew It?”

I think we might need to remind some that the Supreme Court has quite firmly established that corporations are “persons” under the constitution. It seems a bit of a stretch to now delineate between a corporate “person” and an “individual” person.

Acknowledging this, it is quite easy to think of instances when the the congress has used the commerce power to mandate that a person engage in an economic transaction with a private company. Environmental legislation and consumer protection legislation and occupational safety legislation spring to mind.

1. I don’t know Mr. Esenberg’s position on this, but I hope he was similarly outraged during the Bush years as Congress expanded federal power through expansion of the national security state in the interest of fighting terrorism.

2. I really find it odd for a person who has defended Citizen’s United, raising the spector of Lochner to support his point in this case.

In fact, it was in the wake of the repudiation of Lochner that we saw an expansion of federal power from the 40s through the 90s. My understanding of Constitutional history is that until the 90s, the Supreme Court’s retreat from Lochner rendered challenges to Congressional authority to regulate interstate commerce inneffective. Of Course the Supreme Court rediscovered Federalism limits on the enumerated powers of Congress with the Lopez decision.

3. RE: possible challenges to health care reform: I sincerely hope this doesn’t happen, as I think if the Supreme Court goes where Mr. Esenberg wants it to, striking down the law and putting the Court in conflict with Congress and the President, then we would have a situation analogous to the 1930s, with spurious conservative judicial activism putting the Court’s reputation, and indeed our republic, in jeopardy.

FWIW, I think this health care plan is wonderful. The people who thought Social Security and Medicare were a bad idea will again be proven wrong with regard to this health program.

As for the constitutional arguments, I don’t think they go very far at all. Rather than spout off about the Commerce Clause, etc., I will just link here to a very good issue brief by Simon Lazarus over at the ACS website: http://www.acslaw.org/node/15031.

The market for health care insurance is a national market, it comprises a large proportion of the United States economy, and it is not susceptible to effective regulation on a state-by-state basis. I find arguments that Congress lacks the interstate commerce power to legislate in this area to be curious. I also find the argument that, even if Congress is recognized to have power under the interstate commerce clause, the Supreme Court should dictate to Congress the permitted methods by which Congress may legislate in the area to be an argument that contravenes basic separation of powers principles (and that runs contrary to all notions of rational review).

As for the details of the reform bill itself, they are essentially indistinguishable from the plan put forth by Republican members of Congress as an alternative to the Clinton proposal in 1993-1994:

Are the recently passed health care reforms really “the end of the world as we knew it?” If they represent the end of a world in which many Americans cannot afford health care, I certainly hope so.

As the old saying goes, a journey of a thousand miles begins with a single step. Sometimes that first step is a stumble, but at least it’s a step. The recent reforms passed by Congress are only the first step in reforming our health care system. I am confident that “ObamaCare” will need adjusting and fixing before the tale is fully told, but I am equally confident that if these changes are done with an eye towards making the system work, then it will work. This is not Pollyanna pie-in-the-sky dreaming; similar systems work elsewhere in the world, and I am confident that We Americans are at least as capable as the French or the Germans.

While it is true that “Congress possesses only enumerated powers,” what that means has been a source of much disagreement. Professor Esenberg wrote that “courts, over the past seventy-five years have found these enumerated powers to be remarkably protean.” Not quite. In fact, courts have been doing this for about 200 years. Congress’s enumerated powers were read quite expansively by some Framers (such as Hamilton), and quite narrowly by others (like Madison). Justice John Marshall mentioned the limitation of these enumerated powers in Marbury v. Madison. But this same J. Marshall also found Congress’s Commerce-Clause power “plenary” and also endorsed the Bank of the U.S., which was chartered either under an unenumerated power or under an expansive reading of the enumerated powers. Hamilton and Marshall, who understood Congress’s powers to be broad, have “Framer” creds that are as solid as any. Bottom Line: some courts have read Congress’s enumerated powers expansively since The Beginning.

Certainly the Court’s understanding of “commerce” has changed greatly since the 1790s. This may be because the actualities of commerce have changed greatly since the 1790s, or since the 1990s for that matter. Commerce now includes many persons working from their homes for employers in other states. The growing dominance of our service-economy is something the Framers could not have anticipated, any more than they might have anticipated the Internet or assault-weapons. Telecommuting knowledge-workers are a large and growing part of our commerce, and the unpredictability of health insurance options from state to state can reasonably be seen to affect these substantial forms of interstate commerce, clearly falling under the plenary commerce power of Congress.

Whether Congress can impose involuntary mandates on individuals under the taxing power seems non-controversial. Under this power, Congress requires individuals to pay for all manner of unwanted programs. Some people have to pay for what they consider objectionable military costs. Others have to pay for what they consider objectionable law-enforcement costs (such as drug interdiction), or tax-collections themselves. The list is endless.

Some object to the newly mandated insurance requirement, but at the end of the day, objections to the details of how the mandate are implemented are a veneration of form over substance.

Consider an alternative: the Federal Government could provide mandated health insurance through its own funds or purchased from existing insurance companies. Either way, it could pay for it from general revenue by simply raising taxes. There is no constitutional controversy in this.

By mandating that individuals purchase their own insurance, the health care reforms reach the same result (everyone has health coverage) but preserve some individual choice regarding one’s provider. By mandating purchase of insurance; including from privately owned companies, Congress has respected the right of individuals to have some choices and the value private companies bring to the marketplace.

Constitutional objections about mandated transactions with private health-care businesses are not about the result, but about the flexibility provided; the objections come down to this: that individuals were given TOO MUCH CHOICE, and that the mandate is INSUFFICIENTLY SOCIALIST because private insurance companies remain as vital elements. How ironic.

Proposals for the Federal Government to act as the insurer (and thus take the private businesses out of the equation) were suggested. Perhaps reviving those could be one of our first program adjustments?

If a person refuses to purchase health insurance voluntarily, is taxing their income to pay for their coverage a “fine”? Probably. But if a person refuses to pay any legitimately levied tax, penalties normally ensue. This is not novel. Another consideration: if a person urgently needs medical care which they cannot afford, what should we do? What if the desperately sick person is the unlucky child of foolish parents? Should we kick them to the curb and say “too bad, so sad”?

Or do we, as a nation, suck it up and pay for their medical care? That’s pretty much what we do now. Why, then, is it draconian to make people pay what they can for their own care? After all, that is the idea behind insurance: pay now what you can afford so later the insurer will pay what you can’t afford.

So here are our choices: either we 1) require people to buy the insurance they can afford; 2) require some people to pay for others; or 3) kick some people to the curb. Speaking only for myself, I prefer #1, though I realize sometimes #2 will happen. #3 is simply unacceptable to me.

I understand concerns about giving Congress too much power, and no doubt that can and will happen from time to time. But this is not that time. Congress has the authority, going back to The Beginning, to “provide for the common Defence and general Welfare of the United States” and “To make all Laws which shall be necessary and proper for carrying into Execution [their] Powers”; in the early 21st century, these include providing access to affordable health care for all citizens. If we can survive an expansive interpretation of national defense, we can survive an expansive view of general welfare.

It is ironic that some who opposed a public option now question the constitutionality of the act because it compels a private transaction. Some critics of the legislation also suggest that the people’s will is being ignored in passage of the act, even though the Democrats won the White House and Congress just 17 months ago on a platform of sweeping health care reform. My guess is that these folks do not consistently favor public opinion polls over elections as the method of measuring the people’s will.

Perfect consistency is surely too much to ask in a complex world involving constant change. Even so, political discourse in this country too often is disingenuous, attempting to score points rather than shed light or solve problems.

“Constitutional objections about mandated transactions with private health-care businesses are not about the result, but about the flexibility provided; the objections come down to this: that individuals were given TOO MUCH CHOICE, and that the mandate is INSUFFICIENTLY SOCIALIST because private insurance companies remain as vital elements. How ironic”

Exactly. This point highlights the bad faith of those challenging the individual mandate in the courts. It isn’t as if Republicans either in Congress or their allies in state government or the Tea Party activists championed government-run or single-payer health care. They SCREAMED that such schemes were socialist. Because these people come to their lawsuit with unclean hands, their lawsuits should be summarily dismissed and the Republican attorneys general personally held responsible to reimburse the taxpayers of their states for legal fees and costs.

It will be interesting to see if the “bad faith” Martin mentions is significant. I’ve read the complaint for Commonwealth v. Sebelius, the action started by Virginia against the health care reforms, and it does make an issue of the mandate to engage in commercial activities with private companies. That these same people made such strong objection to the Public Option and now complain about the private option does seem to be “bad faith” indeed.

My reference to the “end of the world as we knew it” is not really to the newly enacted health care bill as it is to 1)the state of the law following the upholding of an individual mandate and 2) the manner in which a complete evisceration of the notion that Congress can be held to emumerated powers defined in a way that give those powers boundaries (i.e., an inability to evalutate ends) might lead to push back that incolves more intensive scrutiny of means.

I see no irony or inconsistency with persons opposing an individual mandate or a public option. These people generally oppose federal control of health care and so, quite naturally,would not be in favor of either.

I do agree with Professor McChrystal that much of our public debate is conducted in bad faith, although 1) I don’t think that this is an example of that and 2) I can find ample support for that proposition on both sides of the health care debate which often featured dueling demogoguery.

To say that health care in a national market strikes me as too broad. Some goods and services related to health care are provided in interstate amrkets and others are not. What I think is problematic is the idea that, if a piece of regulation will affect the outcomes in an interstate market, it is within the Commerce Power.

I appreciate the argument that it may be “fair” to require people to insure given the fact that they won’t be held to the consequence of their failure to do so. But that doesn’t mean that Congress has the authority to do it or that it can do it in this particular way. The fact that upholding the individual mandate – either on the basis of the commerce or taxing power – would leave almost no structural limits on Congressional power when the Founders and a robust and ongoing American political tradition holds it to be quite limited should cause one to pause over the matter.

Finally, I am happy to know that, if it is the end of the world as we know it, Professor Fallone feels fine. (I got a similiar comment on Prawfs.) Others, recalling that President Obama’s Secret Service code name is “Renegade” might wish to invoke another part of the same song:

Renegade steer clear! A tournament, a tournament, a tournament of lies.
Offer me solutions, offer me alternatives and I decline.

Regarding: “To say that health care in a national market strikes me as too broad. Some goods and services related to health care are provided in interstate [markets] and others are not.”

It is probable that nearly everything actually “in the national market” is also “provided” (made available) locally by somebody, and that virtually every local provider engages in substantial interstate commerce. Go to the farmers’ market in West Allis, and you can buy onions grown in Georgia. I don’t think Outpost is selling locally grown mangos! Likewise for the medical training, equipment, and even diagnoses provided in Milwaukee.

Re.: “What I think is problematic is the idea that, if a piece of regulation will affect the outcomes in an interstate market, it is within the Commerce Power.”

Indeed, that is the question is it not? I believe the courts have frequently held that such regulations are within the Commerce Power and consistent with Congress’s “plenary” power over interstate commerce.

Re.: “The fact that upholding the individual mandate – either on the basis of the commerce or taxing power – would leave almost no structural limits on Congressional power when the Founders and a robust and ongoing American political tradition holds it to be quite limited should cause one to pause over the matter.”

I am going to walk right up to the buzz saw here, and say that I am not at all troubled by this possibility, and that I don’t know why anyone is. I am comfortable with it because it is what it is. This is spilt milk.

This growth of Congressional power is not the result of nefarious schemes, but an acknowledgment of the vast changes occurring in our economy since the 1790s. To borrow Thomas Friedman’s phrase, the world is (economically) flat and deeply interconnected. There is very little truly local, purely intrastate commerce anymore; health care definitely is not. The fact of these economic realities changes the relationship between Congress and the States, and these facts cannot be undone or denied except at enormous cost and risk to the General Welfare. Congress cannot do what is Necessary and Proper while hog-tied by the quaint fiction that in the early 21st century, “intrastate” commerce can be economically distinguished from “interstate” commerce in America. Much too long the Courts clung to the fiction of “liberty of contract”. Likewise, we must be wary now of Courts clinging to outdated notions denying modern economic realities. These realities may be unlikable, but they are what they are. The milk is spilt.

It took no amendment to the Constitution for these economic realities to take effect, and there was no consensus among the Framers that we must amend the Constitution every time the sun rises on a new day.